Enzi Takes Aim at Solicitor Nominee

The ranking member on the U.S. Senate HELP Committee asked the president this week to withdraw M. Patricia Smith's nomination, saying her comments about a New York State Department of Labor program are not consistent with documents about it from the state of New York.

Aug 26, 2009

U.S. Sen. Mike Enzi, R-Wyo. and ranking member on the U.S. Senate HELP Committee, asked President Obama this week to withdraw M. Patricia Smith's nomination as solicitor of Labor, saying her comments about the New York State Department of Labor's Wage and Hour Watch Program are not consistent with documents about it from the state of New York. Enzi's letter cited "at least four significant inconsistencies between Ms. Smith's statements for the record and documents related to the Wage and Hour Watch Program that have been provided by the State of New York." In his letter to Obama, Enzi wrote that he has no reason to believe Smith intentionally misled the Senate; he said he will oppose her if she did and he questions her ability to lead a large operation if she unintentionally gave inaccurate statements.

Obama chose Smith, who is New York State's commissioner of labor, on March 19 and formally nominated her as U.S. Department of Labor solicitor on April 20. She has not yet been confirmed by the Senate as required. The solicitor's office is DOL's law firm, defending appealed citation cases both in federal courts and before OSHRC and FMSHRC, the two agencies that decide contested occupational and mine safety enforcement cases.

"First, Ms. Smith stated that the Wage and Hour Watch program was developed internally and only then did the New York Department of Labor approach outside groups. However, two of the pilot groups, the Retail Warehouse and Department Store Union (RWDSU) along with Make the Road New York, a public interest entity financed in part by unions, were heavily involved in developing all aspects of the program. They, along with another public interest group, participated in: a) deciding participant eligibility, b) drafting program documents, c) creating training materials and conducting training, d) developing press strategies, etc. The approximately 3000 pages of documents provided by New York in fact show little internal government development of the program.

"Second, Ms. Smith characterized Wage and Hour Watch as an educational program. It does not appear, however, that Ms. Smith's subordinates, including the Wage and Hour Administrator nominee, Ms. Lorelie Boylan, or the union organizers and public interest groups who helped design the program concurred. For example, documents describe the program as an "enforcers" program, and email as well as a training document describe participants as community enforcers. There appears no question that those who created the program considered it enforcement.

"Third, Ms. Smith stated that the two unions who were selected for the pilot program were told not to use the program for organizing. Unfortunately, that direction appeared nowhere in the approximately 3000 pages of material reviewed. Instead, the documents showed that the unions planned to use the program for organizing and the State appears to have done nothing about it. For example:

The Coordinator of Retail Organizing Projects for RWDSU is prominently involved in pushing for and developing the program, and RWDSU organizers conducted part of the program training.

The United Food and Commercial Workers Local 1500 in their written application stated that they plan to use Wage and Hour Watch in "all of our Organizing Campaigns."

A March 2009 union newsletter states the union will specifically investigate "non-union" groceries as part of the program.

Signatories for the pilot program agreements for the two unions are union organizers as appear to be all those attending the program training and receiving state identification cards.

The Co-Chairman of the Wage and Hour Watch program is the president of the RWDSU.

A number of later applicants to join the program are entities whose sole purpose is union organizing -– e.g., the New York State Laborers Organizing Fund and the organizer for a Plumber's Local.

The Wage and Hour nominee in an email suggested altering program participation requirements specifically to ensure up-state trade unions were eligible to join Wage and Hour Watch.

"Fourth, Smith stated in response to multiple inquiries that there were no plans to expand until after a thorough evaluation of the pilot program. However, numerous documents (e.g., press releases, speeches, talking points, emails) actually suggest imminent plans to expand the program to up-state and/or statewide in virtually every instance -- many with June 2009 deadlines. The State even sent out applications to a number of groups to join Wage and Hour Watch during May and June -- after Ms. Smith testified before the Committee that there were no plans to expand immediately."

Leo Rosales, a spokesman for the New York State Department of Labor, on Wednesday said the Wage and Hour Watch program is solely intended to inform the community about labor laws. Begun as a six-month pilot program in April 2009 with six community groups participating without compensation, the program has representatives of the groups going door to door to educate the community about minimum wage and overtime laws, Rosales said in a phone interview.

"We've been trying to get the word out that there are injustices," such as workers in some cases working 80-hour weeks for $300 in pay, said Rosales. "They [the community groups] are our eyes and ears in the community, to let us know what's happening and alert us to wage and hour violations. We're trying to do more with less; the problem is, we have a limited amount of investigators. This is not deputizing people to be Department of Labor staffers. They can't go in and demand [hours worked] records."

Rosales said the program simply formalized relationships with the community groups that had existed for several years, and no businesses have complained about it to the department thus far.